18 Nov Will Trump Take Away Your Right to Marry? Unlikely

As my fellow family lawyers and ART attorneys and I work to wrap our heads around last week’s presidential election results, many of our clients are turning to us for answers to their most urgent questions and concerns. One of the most frequently asked questions has been, will LGBT people in the United States lose the right to marry the under a Trump administration? And if so, will my same-sex marriage still be valid?

According to the experts, the U.S. Supreme Court is unlikely to reverse its two recent decisions upholding same-sex marriage, even with a Trump appointment to replace Conservative Justice Antonin Scalia, and is virtually certain to uphold the validity of existing same-sex marriages.

In fact, the greater danger to your family’s security under a Trump presidency may be legislative efforts to defund and weaken our societal safety nets such as Social Security, Medicare and the Affordable Care Act. As governor of Indiana, Vice President-elect Mike Pence enacted and defended a “religious freedom” law that would have allowed businesses to discriminate against LGBT people on the basis of religion, although he later backpedaled. And Trump has paid lip service to supporting a national law that would protect states’ rights to enact such discriminatory laws. Arguably, these and other issues are of more immediate concern than the loss of marriage equality.

Shannon Mintner of National Center for Lesbian Rights and other constitutional lawyers assure us that the U.S. Supreme Court is unlikely to revisit its 2015 decision that same-sex couples have the fundamental right to marry, at least not immediately.

True, Donald Trump, encouraged by a Republican Congress, will undoubtedly move with all due speed to appoint a replacement for the late Justice Scalia, who died unexpectedly in February, leaving a potentially tied eight-member Supreme Court. Traditionally, sitting Presidents have filled court vacancies with Congressional ratification; however, the Republican-majority House refused to ratify Obama’s selection of moderate jurist Garland Merrick, running out the clock on the presidential election—a strategy that now appears prescient. With Republican control of both houses, Trump’s nominee will face no such obstacle.

But even with the seating of a new Trump appointee, the same 5-4 Supreme Court majority that prevailed in Obergefell v. Hodges, which in June 2015 legalized same-sex marriage in all 50 U.S. states, will still be in place. The court also ruled that states must recognize same-sex marriages performed in other states and must treat same-sex marriages the same way they treat any legal marriage. Therefore, there is no reason for same-sex couples to fear losing the benefits or protections of legal marriage in the near-term.

Likewise, there is strong legal precedent that says a marriage cannot be invalidated by subsequent changes in the law. For example, when California voters passed Proposition 8 in 2008, there were already some 18,000 same-sex marriages that had taken place between May 2008, when the state Supreme Court overturned California’s ban on same-sex marriage, and November 2008, when Prop 8 passed. Those marriages remained intact, with all the rights and privileges of any legal marriage, during the ensuing four-and-a-half years, until a federal appeals court ruled Prop 8 unconstitutional. The U.S. Supreme court upheld the lower court’s decision in June 2013, with the same 5-4 majority that later legalized same-sex marriage throughout the U.S.

Now, could a shift in the balance on the Supreme Court were one of those five majority justices to resign or die during Trump’s presidency lead to a revisiting of the decision legalizing same-sex marriage? That it is a possibility. But before you run out and marry the first guy or gal you meet on the street, keep in mind that the wheels of justice turn slowly. Confirmation of a Supreme Court justice can take months or years, particularly should the balance of power in Congress change at the midterm elections in two years. Timing is everything.

Also keep in mind that, shielded from political pressure by lifetime appointment, Supreme Court justices don’t always end up mirroring the values of the president who appoints them. Justice Anthony Kennedy, a Reagan appointee, was among the 5 justices in the majority on the 2015 same-sex marriage decisions. President George H.W. Bush appointee David Souter, who retired in 2009, began his Supreme Court career as a conservative, but three years in began voting frequently with liberal justices Stephen Breyer and Ruth Bader Ginsberg. The inherent impartiality of the high court is a tangible demonstration of the founding fathers’ wisdom.

And remember that it can take years for a case to make its way up the judicial pyramid to be heard in the Supreme Court—and even then, the court may decline to hear it, for any number of reasons, including that a question has already been adjudicated. A Supreme Court ruling on marriage equality will not happen suddenly or unexpectedly. We’ll all know it’s coming long in advance.

Even if the worst should happen, and a Trump Supreme Court were to revoke the right of same-sex couples to marry, existing marriages would almost certainly remain intact.

Never forget, more than half of U.S. voters now support same-sex marriage. Supreme Court justices always have their fingers to the wind; their bent is not to rule too far out ahead of societal norms—and not to take away freedoms that society has already embraced.

Take heart that millions of people stand behind your right to marry the person you love. Take heart that the wheels of government and of justice turn slowly and deliberately—as frustrating as that may feel to us when we’re waiting to win our rights, it’s equally reassuring when others would try to take them from us. Take heart that we have strong, powerful leaders and organizations determined to advocate for and defend your right to marry. Even some powerful conservative leaders, such as Republican power-lawyer and Federalist Society co-founder Ted Olson, former President George H.W. Bush, and former Vice President Dick Cheney. Do what you can do in your communities to support leaders that reflect your values of inclusion and equality. Volunteer, encourage your friends and loved ones to vote, support other vulnerable communities. Take heart, for, in the words of the late Dr. Martin Luther King, "The arc of the moral universe is long, but it bends toward justice."

Tags:

Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.